December 13, 2007

Covered

Randi
Black's
7,152,606 covers a nipple cover, one that got good coverage from Eastern
District of Texas Judge John Love's Markman hearing, adopting most of the
language the plaintiff preferred on the crucial term "nipple cover." The
defendants had argued for an unreasonably narrow construction.

Black maintained that a nipple cover should be construed as "an article for
covering the nipple on a human breast, that is not supported by attached straps
around the body or by a brassiere, that is smaller than a brassiere, and that
does not substantially enhance the apparent size of a woman's breast."

The defendants had argued for "a small, thin, flexible flesh-colored
device that covers the nipple and extends a short distance beyond the nipple and
areola and that is not intended to replace or enhance a woman's breast and is
not intended to provide support to the breast."

The judge found Black's language more to the point, adopting: "an article for
covering the nipple that extends beyond the nipple and areola; is unsupported by
attached straps around the neck, back, shoulders or arms; and does not replace
or substantially enhance the apparent size of a woman's breast."

The case has not gone well for the defense: losing a motion to limit
discovery, so as to hide profits; as well as losing a summary judgment motion
attempting to invalidate the patent because of an unintentional abandonment.

If no prior art invalidation position can be developed to cover the nipple of
infringement, the smart move would be to settle, but smart is rare.